Court backs affirmative action ban

Published April 23. 2014 12:01AM

By GREG STOHR Bloomberg News

Publication: The Day

Washington - The U.S. Supreme Court dealt a blow to affirmative action, upholding a voter-approved ban on racial preferences at Michigan's state-run universities in a decision that may spur similar initiatives elsewhere.

The justices, voting 6-2, said Tuesday that racial preferences were a legitimate subject to be put before the state's voters. A federal appeals court had said Michigan unconstitutionally stripped racial minorities of their rights.

"Democracy does not presume that some subjects are either too divisive or too profound for public debate," Justice Anthony Kennedy wrote in the court's lead opinion.

The ruling has both symbolic and substantive significance. A decade ago, the University of Michigan won a Supreme Court decision that let institutions across the country continue to use race as an admissions factor. The survival of the voter-approved initiative means that ruling is nullified for the university that secured it.

Black enrollment is down about 30 percent at the undergraduate and law schools since the measure took effect, according to the university's figures. Michigan is one of 10 states where race-conscious admissions are barred at public institutions, by ballot initiative or other government action.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented. Sotomayor, who took the unusual step of reading a summary of her dissent from the bench, wrote that the court was "permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan."

Chief Justice John Roberts has sought to steer the court toward a color-blind approach to the Constitution. Sotomayor wrote that Roberts' approach was "out of touch with reality."

Roberts responded that "it is not 'out of touch with reality'" to conclude that racial preferences may "do more harm than good" by sowing doubt among beneficiaries about their own qualifications.

Kennedy wrote for himself, Roberts and Justice Samuel Alito. Justices Antonin Scalia and Clarence Thomas wrote separately to say they would have gone further, while another member of the majority, Justice Stephen Breyer, wrote a separate opinion to say he would have ruled more narrowly than Kennedy. Justice Elena Kagan didn't take part in the case.

Although she didn't specify a reason, she was President Barack Obama's solicitor general when the administration had a chance to get involved in the litigation.

The justices in their last nine-month term overturned a core part of the Voting Rights Act, the law designed to protect minorities at the polls. The court also issued a compromise ruling that ordered tougher judicial scrutiny of university affirmative action programs.

Tuesday's ruling involved different legal issues from those in past affirmative action disputes. Rather than deciding whether universities violate the rights of white students by using affirmative action programs, the court considered whether state bans on racial preferences amount to discrimination against minorities.

A federal appeals court said the Michigan measure put racial minorities at a unique disadvantage. The 8-7 decision said minorities are barred from asking universities for special preferences-something athletes, band members and children of alumni could still do.

Proposal 2, as the initiative was known, bars preferences on the basis of gender or race in public education, contracting and employment. The university admissions aspect of the law was the only part before the Supreme Court.

The Supreme Court has grown more skeptical of affirmative action since upholding it in 2003. That's largely because of Justice Sandra Day O'Connor's 2006 retirement and the appointment of Alito to fill her seat.